U.S. v. Voss

• Decision Date: 25 April 1986
• Docket Number: Nos. 84-2417,84-2421,s. 84-2417
• Citation: 787 F.2d 393
• Parties: UNITED STATES of America, Appellee, v. Anne C. VOSS, Appellant. UNITED STATES of America, Appellee, v. Thomas E. LOWE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 393

787 F.2d 393

UNITED STATES of America, Appellee, v. Anne C. VOSS, Appellant.

UNITED STATES of America, Appellee, v. Thomas E. LOWE, Appellant.

Nos. 84-2417, 84-2421.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 16, 1985.

Decided March 26, 1986.

Rehearing

Denied April 25, 1986 in No. 84-2421.

As Amended on Denial of Rehearing En Banc May 29, 1986 in No. 84-2417.

Robert M. Paskal and Ronald Wessell, St. Louis, Mo., for appellant.

Debra E. Herzog, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Anne C. Voss and Thomas E. Lowe separately appeal after a jury trial from convictions of attempted arson, in violation of 18 U.S.C. Sec. 844(i) (1982), and four associated counts of mail fraud in violation of 18 U.S.C. Sec. 1341 (1982). In addition, Voss appeals from a conviction of committing perjury before the grand jury, in violation of 18 U.S.C. Sec. 1623 (1982). Appellants complain principally that the jury instruction on the interstate commerce element of the arson charge was erroneous. The jury was instructed to conclude that the property to be burned, a vacant St. Louis residence, was used in an activity affecting interstate commerce, if it found that the house was owned by Voss Associates, Inc., and that Voss Associates, Inc. had purchased insurance from a carrier doing business in more than one state. We conclude that the facts found by the jury do not form a sufficient basis to meet even the de minimus standard for showing that the building was used in an activity affecting interstate commerce. We therefore must reverse the arson convictions. However, we also conclude that the challenges to the mail fraud and perjury counts are without merit and affirm those convictions.

This case grows from an investigation jointly undertaken by the Illinois State Police, Division of Criminal Investigation (DCI), and the Federal Bureau of Alcohol, Tobacco, and Firearms, into arson activity in the St. Louis metropolitan area. The government's evidence consisted largely of testimony of agents participating in the investigation and from conversations secretly tape-recorded between one of the agents, working undercover, and the appellants.

Through an informant, a DCI undercover agent, posing as an arsonist-for-hire and wearing a tape recorder, was introduced to Thomas Lowe. Lowe agreed, for a fee, to contact property owners interested in purchasing the agent's proffered services. Among those brought to the agent by Lowe was Anne Voss, owner of Voss Associates, Inc., a real estate business.

On March 10, 1983, Voss met with the undercover agent at Lowe's office and agreed to pay him $500 to set fire to a vacant residential property she owned, at 1207 Tyler, in St. Louis. Immediately after the meeting she paid him a $100 deposit. Two days later, Voss met with an insurance agent, referred to her by Lowe, to obtain fire insurance on the 1207 Tyler property. On the insurance application, which she signed on behalf of Voss Associates, Inc., and which she returned by mail, she stated that the property was "being rehabilitated." Appellee's Exhibit No. 4. Voss succeeded in insuring the property for $15,000.

In subsequent conversations, many of which were recorded, Voss and the DCI agent, with Lowe often serving as intermediary, planned the arson. Voss gave the agent directions to the property and told him to litter the property with wine bottles to "make it look like a couple of winos were sleeping in [the house] * * * a few wine bottles and a little fire and that's it * * * then the police don't ask any more questions." Tr. II, 122. In early May, 1983, shortly before the arson was to take place, Voss and Lowe were arrested.

Appellants were convicted of attempted arson and four associated counts of mail fraud. Voss also was convicted of perjury before the grand jury. Voss was sentenced to four years imprisonment on the arson and each of the mail fraud counts, to run concurrently, and to three years probation and a $5,000 fine on the perjury conviction. Lowe received a five year sentence on the arson count to run concurrently with the four year sentences on each of the mail fraud counts. This appeal followed.

I.

18 U.S.C. Sec. 844(i) (1982) provides for punishment of anyone who

maliciously damages or destroys or attempts to destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate commerce or any activity affecting interstate or foreign commerce * * *.

As with most federal criminal statutes, section 844(i) requires that the acts proscribed have some connection to interstate commerce. Specifically, the jurisdictional element of section 844(i) is satisfied if the property to be burned is used in an activity affecting interstate commerce. Voss and Lowe claim that the district court improperly instructed the jury on this element. Thus, they charge, their convictions must be reversed.

The district court instructed the jury, over appellants' objection, to conclude that the 1207 Tyler property was used in an activity affecting interstate commerce if it found: first, that the property was owned by Voss Associates, Inc.; and second, that Voss Associates, Inc. had purchased insurance from a carrier doing business outside the State of Missouri. ¹ Appellants challenge the instruction on two grounds. They contend that the instruction was improper because it requires a nexus only between interstate commerce and the owner of the building, not the building itself--it does not ask whether the insurance was purchased for the 1207 Tyler property--as is required by the statute. They also argue, in the alternative, that ownership by a business of a vacant, residential property, insured by a carrier doing business out of state, without more, is not legally sufficient to support the conclusion that the property was used in an activity affecting interstate commerce. Since an element of the section 844(i) offense, in this case the element which confers federal jurisdiction, was not satisfied, the arson convictions, defendants conclude, must be reversed.

The commerce clause authorizes Congress to punish any criminal activity bearing even a de minimus relation to interstate commerce. United States v. Perez, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Congress intended, in enacting section 844(i), to exercise its fullest, constitutionally permissible jurisdictional reach over persons attempting to commit arson to property affecting interstate commerce. Russell v. United States, --- U.S. ----, 105 S.Ct. 2455, 2456 & n. 4, 85 L.Ed.2d 829 (1985). Therefore, section 844(i) reaches attempted arson of any property used in an activity having even a de minimus connection to interstate commerce. See, e.g., United States v. Hansen, 755 F.2d 629, 630-31 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 105, 88 L.Ed.2d (1985).

Admittedly, the de minimus standard is easily met. See e.g., Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964). Still, it is not always met. See, e.g., United States v. Mennuti, 639 F.2d 107 (2d Cir.1981). In support of the conclusion that the attempted arson has some connection to interstate commerce, the jury found that Voss Associates owned the building and purchased insurance from an interstate carrier. The connection here suggested is that property owned by a business insured by an interstate insurer is property "used" in an activity affecting interstate commerce. We believe that the de minimus standard--and the important federal-state balance it guards--if it be any standard at all, would be starved of content if sustained only by the thin jury findings in this case. Showing that a corporate property owner purchased insurance from a carrier doing business in more than one state, without showing more, is inadequate as a matter of law to demonstrate sufficient effect on interstate commerce to satisfy the de minimus standard.

This approach is not inconsistent with the decisions of other courts of appeals. The government argues that in United States v. Grossman, 608 F.2d 534 (4th Cir.1979), a section 844(i) case, federal jurisdiction was predicated upon the defendant's purchase of insurance from an out-of-state carrier. Grossman involved a backhoe which had been manufactured in Iowa, sold and shipped to a Virginia equipment company, and then sold to a North Carolina construction company, the purchase being financed by a national lending institution. Upon the bankruptcy of the construction company, the guarantor of the loan acquired the backhoe, with refinancing by the same lender, and advertised it for sale to "anybody, anywhere" in a Tennessee trade newspaper. Thus it is plain that in Grossman, many factors in addition to insurance combined to create the interstate effect. Similarly, in United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981), the court stated: "We are inclined to believe that the mere fact that a building is insured by an interstate carrier does not meet even the de minimus standard," under section 844(i). Id. at 232. There too, however, the court discovered "undisputed evidence as to alternative jurisdictional predicates," such as the sale of food and beverage, and the consumption of heating fuel, all originating outside the state, upon which to sanction the imposition of federal authority. Id. at 232-33. See also United States v. Belcher, 577 F.Supp. 1241, 1245 (E.D.Va.1983) (concluding that insurance was insufficient to confer federal jurisdiction, but finding other contacts to suffice).

In the present case only two facts were found, and they alone are not enough. We therefore conclude that because the jury instruction did not embody the adequate legal standard for an effect on interstate commerce, the...